News & Views Monday 14th May to Sunday 20th May 2018  

Home Office Revises Guidance On Study Restrictions For Immigration Bail

The Home Office has released revised guidance in respect of immigration bail. Changes introduced at the beginning of the year resulted in many migrant children and asylum seekers being banned from studying. The revised guidance amends the conditions related to study in the UK. 

Legal changes in January of this year meant that individuals claiming asylum were considered to be on “immigration bail” – restrictions that the Home Office applies to asylum seekers until an immigration status is decided. This is a change from the previous ‘temporary admission’ status granted to individuals awaiting an immigration decision. Significant numbers of young refugees were given study conditions, restricting them from continuing their education. Additionally, study conditions were considered retrospectively, therefore affecting anyone who was already in the UK. As a result of this, some asylum seekers who have been in the UK since they were children were being notified that they were no longer allowed to study.

Concerns were raised over instances of young asylum seekers being barred from studying in the UK. The January version of the immigration bail guidance stated: “if the person being granted immigration bail does not have any leave to enter or remain in the UK, it will be appropriate to impose a bail condition restricting work and studies in the majority of cases”. According to the revised guidance, conditions permitting or prohibiting study no longer have to be issued and consideration must be given to whether the individual is preparing for significant exams and therefore the impact of any study restriction. The guidance concludes, “if there is any doubt over whether study should be restricted, no study condition should be applied”. 

Posted by: Gherson Immigration,

Excessive Restraint Used On Asylum Seekers on Forced Charter Flight

Private contractors used excessive restraint on low-risk asylum seekers on a removal flight out of the UK, inspectors have revealed in a damning report. Escort staff were led to believe by dire warnings during a staff briefing that they were dealing with a high-risk group, when the majority of passengers had no history of being disruptive, Her Majesty’s Inspectorate of Prisons (HMIP) said in a report. The staff, who outnumbered detainees by more than three to one and were employed by Tascor, which is part of the outsourcing giant, Capita, used disrespectful language about detainees, including referring to one as “an arse”, inspectors said. Some staff were flippant and spoke to each other in “loud and jocular” voices, the report said, while inspectors were concerned that the only female detainee on the flight was forced to use the toilet with the door open in an “unnecessary intrusion into privacy”. All but one of the 23 detainees on the flight out of London Biggin Hill airport in January were placed in waist restraints, which restrict arm movements and can hold arms clamped to the body in the secure position, HMIP said. Inspectors branded the use of the restraints as “not necessary, proportionate or reasonable”.

Read more: Jamie Grierson, Guardain,

Windrush Compensation Scheme - A Call for Evidence

Sajid Javid - Secretary of State for the Home Department

The Government have committed to support those of the Windrush generation who have faced difficulties in establishing their status under the immigration system. Among the series of measures to help put things right, I have already announced that a compensation scheme will be put in place for those who have suffered financial loss as a result of these difficulties, and that we will consult on the design of this scheme. I want to do this as quickly as possible. But also need to get the detail right reflecting the complexity of ways in which people might have been impacted.

As a first step to establishing the compensation scheme the Home Office is today launching a call for *evidence that is addressed to those who have been affected by this situation, and to their families. This will be the first step of the consultation process, and will be published on A copy of the document will also be placed in the House Library.
It is always important for government to listen, and it is especially important to do so now. To put things right we need to understand more about what happened, to understand the personal stories, which will help to inform the design of the compensation scheme. As well as receiving written contributions I have asked officials to reach out to the people and communities most closely affected, listen to their concerns directly and, in particular, understand properly how we might address them through a compensation scheme.

I believe it is also important to have some external assurance that the compensation scheme meets the needs of those affected. So I will appoint an independent person to oversee the running of the scheme when it is in place. Martin Forde QC has agreed to provide independent advice on the design of the scheme. He is himself the son of Windrush parents and brings a wealth of experience in complex public law and ?compensation matters. I am confident that he will ensure that the interests of those affected will be properly represented and reflected in the scheme.

The call for evidence will run until 8 June. Once we have listened and considered those contributions, I will then launch a public consultation as soon as possible to provide the technical detail on proposals for the compensation scheme. I want to put in place a compensation scheme as quickly and as carefully as possible, to help redress what has gone wrong.


*Windrush Compensation Scheme - A call for evidence

Launch date 10 May 2018 Respond by 8 June 2018

Certified under section 94B of the Nationality, Immigration and Asylum Act 2002

(1)   Where an appellant’s appeal has been certified under section 94B of the Nationality, Immigration and Asylum Act 2002 and the appellant has been removed from the United Kingdom pursuant to that certificate, the First-tier Tribunal is the forum for determining whether, in all the circumstances, the appeal can lawfully be decided, without the appellant being physically present in the United Kingdom. The First-tier Tribunal is under a continuing duty to monitor the position, to ensure that the right to a fair hearing is not abrogated. In doing so, the First-tier Tribunal can be expected to apply the step-by-step approach identified in AJ (s 94B: Kiarie and Byndloss questions) Nigeria [2018] UKUT 00115 (IAC).

(2)   If the First-tier Tribunal stays the appeal proceedings because it concludes that they cannot progress save in a manner which breaches the procedural rights safeguarded by Article 8, then it is anticipated the Secretary of State will promptly take the necessary action to rectify this position. If this does not happen, then an application for judicial review can be made to the Upper Tribunal to challenge the Secretary of State’s decision and compel him to facilitate the appellant’s return.

(3)   If the First-tier Tribunal decides that the appeal process is Article 8 compliant, the Tribunal’s substantive decision will be susceptible to challenge, on appeal to the Upper Tribunal, on the ground that the Tribunal was wrong so to conclude.

CJEU: Preliminary Ruling In Case C-353/16 

Eligible for subsidiary protection if there is a real risk of him being intentionally deprived, in his country of origin, of appropriate care for the physical and mental after-effects of that torture, that being a matter for the national court to determine.

Request for a preliminary ruling under Article 267 TFEU from the Supreme Court of the United Kingdom, made by decision of 22 June 2016, received at the Court on 27 June 2016, in the proceedings

On those grounds, the Court (Grand Chamber) hereby rules:

Articles 2(e) and 15(b) of Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted, read in the light of Article 4 of the Charter of Fundamental Rights of the European Union, must be interpreted as meaning that a third country national who in the past has been tortured by the authorities of his country of origin and no longer faces a risk of being tortured if returned to that country, but whose physical and psychological health could, if so returned, seriously deteriorate, leading to a serious risk of him committing suicide on account of trauma resulting from the torture he was subjected to, is eligible for subsidiary protection if there is a real risk of him being intentionally deprived, in his country of origin, of appropriate care for the physical and mental after-effects of that torture, that being a matter for the national court to determine.

24/April 2018 United Kingdom of Great Britain and Northern Ireland | Sri Lanka

European Union: Court of Justice of the European Union

Charter Flights January/February/March 2018

No-Deportations asked the Home office for information regarding about charter flight operations between January and March 2018. Your query has been handled as a request under the Freedom of Information Act 2000.

We are now in a position to provide a full reply to your request.
1. Number of males removed 365
2. Number of females removed 38
3. Number of escorts 1,016
4. Number of flights in total 12
5. Number flights to each country / number removed to each country

Destination                   Number of Flights         Returnees
Albania                                    4                        164
Austria/Bulgaria/France            1                         23
Bulgaria/France                        1                         22     
Ghana/Nigeria                          3                         110                                       
Pakistan                                   3                          84

No children were returned.


New Guidance on Implementation of Immigration Bail Published for Judges

The new guidance released by Judge Clements replaces the old Presidential Guidance Note, which was drafted back in 2012. The new guidance states that a bail hearing will be listed “as soon as possible, normally within three working days”. This timescale is yet to be tested, but over time it might prove difficult to maintain as it is no secret that the IAC Tribunal system is already very stretched.

In addition, the guidance, in accordance with the Tribunal Procedure Rules, requires that the Secretary of State provide both the Tribunal and the bail applicant with a document referred to as a ‘Bail Summary’, which sets out the grounds for the Secretary of State’s opposition to the bail application. The Secretary of State must also provide a copy of any removal directions. The new guidance states that if removal directions are not produced, the Tribunal “will not be able to show that the person applying for bail is subject to directions for the removal within 14 days”, suggesting that the Secretary of State’s arguments as to why bail should not be granted is subject to refusal.

As summarised below, the key elements of this new guidance are:

-    An Immigration Judge is not to decide whether continued detention is lawful. However, the guidance goes on to state that if detention is deemed no longer justifiable before the Tribunal, bail should be granted.

-    An Immigration Judge is not to automatically impose a residence condition. This means that Judges are no longer in a position to determine where an applicant may live. The grounds for this are that bail conditions should not restrict the freedoms of an applicant unless it is absolutely necessary.

-    An Immigration Judge is not able to propose or encourage the withdrawal of bail applications, their powers only allow them to grant or refuse an application made to the Tribunal.

-    Finally, in cases where the Secretary of State refers a case to the Tribunal for a bail hearing, the new guidance specifies that “special regard” would be needed concerning the length of the detention, given that “it is generally accepted that detention for three months would be considered a substantial period of time”.

This is not a full and comprehensive explanation of the new guidance or how the judges will apply it. The new guidance has been written in a way that could make for very fair conduct of immigration bail cases. This is merely an update to the previously summarised main features of the post-Immigration Act 2016 regime. There is no indication as to how effective this new system will be or how well it will be implemented. It is also important to note that the Secretary of State can vary the conditions after bail has been granted.

Posted by: Gherson Immigration,

Patients Have the Right to be Treated -Doctors Should be Able to Treat Them

·  New research shows that unrealistic English language tests are preventing hundreds of medical professionals from practising in the UK as the NHS struggles to survive.

·  Research will be launched in Manchester on May 16th - the day before an NHS recruitment and retention conference takes place in the city.

Wednesday, newly launched research will show that the current unrealistic English language test levels for medical professionals are stopping hundreds of skilled people from working in the NHS.
Findings from the research will be available and a question and answer session will follow. The launch comes the day before an NHS Skills, Recruitment and Retention conference in the city.

The research will show that doctors, nurses, pharmacists, dentists and laboratory technicians are being prevented from working in a struggling NHS because of the English language test levels set by the General Medical Council (GMC) and other professional bodies.

The research will be launched at a press conference to be held at 2pm at the Robert Darbishire Practice, Rusholme Health Centre, Walmer Street, Manchester M14 5NP.

K.A. and Others v Belgian State (Family Reunification in Belgium & Or EU Countires)

Requests for family reunification must be examined even if the national of a non-EU country, who is a family member of an EU citizen who has never exercised his right of freedom of movement, is subject to an entry ban

Whether there is a relationship of dependency between the national of a non-EU country and the EU citizen and whether public policy grounds justify the entry ban must be assessed on a case-by-case basis

Child Slavery Victim in Claim Against Home Office After Sexual Assault at Morton Hall IRC

H was trafficked to the UK from Vietnam as a child. He was taken captive in Ho Chi Minh City by his traffickers aged 15. He was tortured, raped and forced into debt bondage. He was beaten with electrified sticks and burned with heated rods. He was then trafficked to the U.K, deliberately starved, deprived of his liberty, and forced to tend cannabis plants in Derbyshire.

When he was 17, H was found by the police at a cannabis house in Derbyshire. Although he presented with clear indicators of trafficking, the Police failed to refer him on to the National Referral Mechanism (NRM). He was arrested and charged with cannabis cultivation. As he was a child, H was released into the care of the Local Authority whilst his criminal case was ongoing. H absconded from local authority care.

A year later H was found at a property raided by the police. He was arrested on suspicion of illegal entry and then remanded in custody because of his outstanding criminal charges. Once again the police did not recognise him as a victim of trafficking or refer him to the NRM.

H was interviewed by an Immigration Officer and repeated the account of his experience as a victim of trafficking, which he had raised at his previous arrest. It was only then that he was referred onto the NRM process. H quickly received a positive reasonable grounds decision, in support of his account that he was a victim of trafficking.

The Competent Authority is obliged to communicate positive reasonable grounds decision to the police, who in turn should inform the Criminal Prosecution Service (CPS). However, in our client’s case the Competent Authority did not inform the police or the CPS. The CPS has since confirmed that, had they been aware of the positive reasonable grounds decision, they may not have prosecuted H as it would not have been in the public interest to do so.

Without this, H was convicted and sentenced to 8 months imprisonment for cannabis cultivation. H was noted to be a model detainee throughout the period he was imprisoned. He served 4 months of his sentence and was subsequently detained by the Home Secretary under immigration powers. He was transferred from a Youth Offenders Institute to Morton Hall Immigration Removal Centre (IRC).

In total, H was imprisoned for 4 months and unlawfully detained by the Home Secretary in immigration detention for over 12 months.

Whilst unlawfully detained at Morton Hall IRC by the Home Secretary, our client was sexually assaulted and subject to an attempted rape in his cell by a fellow detainee. He told staff at the detention centre what happened, and he was informed that the incident would be investigated. A fight later broke out between his attacker and several other detainees. The Detention Centre records of this incident show that detention centre staff were aware that this fight was a result of our client’s attacker sexually harassing other detainees, including our client. This incident was not investigated internally by the detention centre, or referred to the police for a criminal investigation. After the assault, H was unlawfully detained by the Home Secretary for a further 6 months.

Our client says:

“[My] time in immigration detention was awful. After this incident, I was really paranoid that other detainees would hurt me all of the time. I felt scared all the time and I found it very difficult to sleep or eat. Morton Hall staff do not protect the detainees. Although terrible things have happened to me in the past, the effect of immigration detention made this even worse.”

According to clinical psychologists who assessed H during his detention, he was left severely traumatised and feared for his life after the assault, which triggered memories of earlier rape and abuse he had suffered at the hands of his traffickers.

Morton Hall accepts that the assault took place, but did not launch an investigation into the attempted rape or provide any support to H after the attack. The centre began an internal enquiry into the attack only after being contacted by Duncan Lewis.

Lead solicitor, Ahmed Aydeed, and a team of Public Law practitioners are bringing a civil claim on behalf of our client against the Home Secretary and the Ministry of Justice, who runs Morton Hall IRC, for negligence, breach of statutory duty and the ongoing failure to initiate any internal investigation or referral to the police for a criminal investigation of the allegation of sexual assault made by the our client, under s.6 and Articles 3, 8 and 14 of the Human Rights Act 1998. The Ministry of Justice has accepted that they failed to investigate the incident and has issued an apology.

Duncan Lewis: